UPS Ground Freight, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 2018

366 NLRB No. 100 (N.L.R.B. 2018)

366 NLRB No. 100
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
UPS Ground Freight, Inc. and International Brother-
hood of Teamsters Local 773. Case 04–CA–
205359
June 1, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS PEARCE
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on August 30,
2017, by International Brotherhood of Teamsters Local
773 (the Union), the General Counsel issued the com-
plaint on September 13, 2017, alleging that UPS Ground
Freight, Inc. (the Respondent) has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to recognize and bargain with it following the Union’s
certification in Case 04–RC–165805. (Official notice is
taken of the record in the representation proceeding as
defined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in
part and denying in part the allegations in the complaint,
and asserting affirmative defenses.
On October 12, 2017, the General Counsel filed a Mo-
tion for Summary Judgment. On October 17, 2017, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. On November 20, 2017, the Re-
spondent filed a Corrected Opposition to the Motion for
Summary Judgment, Response to the Notice to Show
Cause, and Cross-Motion for Summary Judgment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain,1 but con-
tests the validity of the Union’s certification of repre-
sentative on the basis of its contentions, raised and re-
jected in the underlying representation proceeding, that

1 Although the Respondent denied the allegations in par. 4 of the
complaint regarding the Sec. 2(13) agency status of its legal counsel,
based on its assertion that the phrase “at all material times” is vague,
the Respondent admitted the allegations in par. 7 of the complaint that
about August 24, 2017, by letter from its legal counsel, the Respondent
stated that it would not recognize or bargain with the Union. Accord-
ingly, we find that the Respondent’s denial of par. 4 does not raise any
issue warranting a hearing.
the unit is not appropriate under the Act because it
should have included employees at additional locations
and it should have excluded certain other employees, that
the Board’s Final Rule regarding the Board’s election
processes is unlawful, and that the Region’s application
of the Board’s Final Rule was unconstitutional, unlawful,
and arbitrary.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding.2 The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor has it shown any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding.
In its answer to the complaint and in its opposition to
the Motion for Summary Judgment, the Respondent rais-
es a number of additional arguments in support of its
contention that the complaint should be dismissed. For
the following reasons, we find that these arguments do
not raise any material issues warranting the reexamina-
tion of the representation case or the denial of summary
judgment.
First, we find no merit to the Respondent’s argument
that the complaint is barred by Section 10(b) of the Act
because the August 30, 2017 charge was filed more than
6 months after the Respondent’s February 23, 2017 re-
fusal to bargain with the Union. The Board has held that
even where there was an initial request and refusal to
bargain outside of the 10(b) period, a respondent’s later
refusal to bargain after a subsequent bargaining request
made during the certification year constitutes an inde-
pendent unfair labor practice for 10(b) purposes. Thus,
in Bentson Contracting Co., 298 NLRB 199 (1990), enf.
denied on other grounds, but affd. in pert. part 941 F.2d
1262, 1264–1265 fn. 2 (D.C. Cir. 1991), the Board held
that, as a matter of law, successive refusals to bargain
during the certification year are separate unfair labor
practices based on the obligation to bargain that was es-
tablished, both factually and legally, by the Board’s certi-
fication, and cannot be deemed “merely reiterations of an
initial refusal to bargain.” 298 NLRB at 200. In Ben-
tson, the Board held that the fact that there may have
been a separate earlier refusal to bargain “is simply irrel-

2 One of the arguments reiterated by the Respondent in its Opposi-
tion to the Motion for Summary Judgment is that Specialty Healthcare
and Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub
nom. Kindred Nursing Center East, LLC v. NLRB, 727 F.3d 552 (6th
Cir. 2013), was wrongly decided and should be overruled. However, in
its July 27, 2017 Decision on Review and Order, the Board did not rely
on Specialty Healthcare in denying review of the Acting Regional
Director’s finding that the petitioned-for unit was appropriate. UPS
Ground Freight, Inc., 365 NLRB No. 113, slip op. at 1 fn. 1 (2017).
Accordingly, Specialty Healthcare is not applicable in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
evant for the purpose of the 10(b) limitation.” Id. See
also St. Francis Healthcare Centre, 325 NLRB 905, 905
fn. 2 (1998), enf. denied on other grounds 212 F.3d 945
(6th Cir. 2000). Here, there is no dispute that the charge
in this case was filed and served on the Respondent on
August 30, 2017, less than 6 months after the Respond-
ent’s August 24, 2017 clear refusal to bargain following
the issuance of the Board’s July 27, 2017 Decision on
Review and Order (365 NLRB No. 113), in which it
ruled on the Respondent’s request for review of the Act-
ing Regional Director’s Decision and Direction of Elec-
tion and Supplemental Decision on Objections to Elec-
tion and Certification of Representative. Because the
August 24, 2017 refusal to bargain occurred during the
certification year, we find no merit to the Respondent’s
argument that the complaint is time-barred because the
charge was filed more than 6 months after the Respond-
ent’s earlier February 23, 2017 refusal to bargain.
Moreover, even assuming arguendo that the February
23, 2017 refusal to bargain was relevant to the 10(b)
analysis, the Board has held that the 10(b) period does
not begin to run until the charging party receives “clear
and unequivocal notice,” either actual or constructive,
that an unfair labor practice has occurred. Leach Corp.,
312 NLRB 990, 991 (1993), enfd. 54 F.3d 802 (D.C. Cir.
1995); Christopher Street Owners Corp., 286 NLRB 253
(1987) (10(b) period does not begin to run until it be-
comes clear that the employer is refusing to recognize
and bargain with the union), enfd. 847 F.2d 835 (2d Cir.
1988). Here, until the Board issued its July 27, 2017
Decision on Review and Order, it was not certain that the
Respondent’s refusal to bargain constituted an unfair
labor practice. See, e.g., Land-O-Sun Dairies, LLC, 357
NLRB 755, 756 (2011) (finding, in a unit clarification
context, that the earliest date on which the union could
have had clear and unequivocal notice of the unlawful
conduct was the date the Board denied the respondent’s
request for review). Thus, any prior refusal to bargain
did not constitute clear and unequivocal notice that an
unfair labor practice had occurred. Accordingly, we find
that the August 30, 2017 charge was timely filed and not
barred by Section 10(b) of the Act.
Second, we find the Respondent’s argument that the
complaint is barred by the doctrine of laches to be simi-
larly meritless. The Board and the courts have long held
that the defense of laches does not lie against the Board
as an agency of the United States Government. Garda
CL Atlantic, Inc., 365 NLRB No. 108, slip op. at 1, fn. 1
(2017); Entergy Mississippi, Inc., 361 NLRB 892, 893
fn. 5 (2014) (citing NLRB v. J. H. Rutter-Rex Mfg. Co.,
396 U.S. 258 (1969)), affd. in relevant part 810 F.3d 287,
298–299 (5th Cir. 2015).
Third, we reject the Respondent’s assertion that this
case should be dismissed or transferred to a different
Region because of an appearance of partiality and a con-
flict of interest in Region 4 resulting from misconduct by
the Regional Director. The Respondent argues that the
Region’s partiality is evident because “every single sub-
stantive ruling by the Region” in the representation case
resulted in “detriment” to the Respondent. We find no
merit in these contentions. The Board has held that the
resolution of all issues in favor of one party is insuffi-
cient to support a finding of bias or prejudice. Teamsters
Local 722 (Kasper Trucking), 314 NLRB 1016, 1030
(1994), enfd. 57 F.3d 1073 (7th Cir. 1995); Penn Color,
Inc., 261 NLRB 395, 395 fn. 1 (1982), enfd. 716 F.2d
891 (3d Cir. 1983); Dimensions in Metal, Inc., 258
NLRB 563, 563 fn. 1 (1981). Further, the Respondent
has not shown that the Regional Director’s misconduct
had any impact on the Region’s rulings in this case. The
Regional Director was recused from acting in this matter
and there is no indication that he had any involvement in
the processing of this case. The Respondent’s unsub-
stantiated claim that the Regional Director’s misconduct
tainted the rulings made by the Region and called into
question the entire election process is insufficient to raise
a reasonable doubt as to the fairness and validity of the
election. See, e.g., Polymers, Inc., 174 NLRB 282, 282
(1969) (“The question which the Board must decide in
each case in which there is a challenge to conduct of the
election is whether the manner in which the election was
conducted raises a reasonable doubt as to the fairness and
validity of the election”). Accordingly, we find that the
Respondent has failed to establish that the motion should
be denied on this basis.
We therefore find that the Respondent has not raised
any representation issue that is properly litigable in this
unfair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment and deny the Respondent’s Cross-Motion for
Summary Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in

3 Chairman Ring did not participate in the underlying representation
proceeding. He agrees with his colleagues that the Respondent has not
raised any litigable issue in this unfair labor practice proceeding and
that summary judgment is appropriate, with the parties retaining their
respective rights to litigate relevant issues on appeal.
UPS GROUND FREIGHT, INC. 3
Kutztown, Pennsylvania (the facility), and has been en-
gaged in the nationwide distribution of freight.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, purchased and received at the facility
goods valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held by mail bal-
lot from January 11 through January 29, 2016, the Union
was certified on March 11, 2016,4 as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
INCLUDED: All regular full-time and part-time road
drivers employed by the Employer at its facility located
at 9755 Commerce Circle, Kutztown, Pennsylvania.
EXCLUDED: All other employees, guards, and super-
visors as defined in the Act.5
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
About August 22, 2017, the Union, by email to the Re-
spondent’s legal counsel, requested that the Respondent
bargain collectively with the Union as the exclusive col-
lective-bargaining representative of the unit. About Au-
gust 24, 2017, the Respondent’s legal counsel, by letter,
stated that the Respondent would not recognize or bar-
gain with the Union. Since about August 24, 2017, the
Respondent has failed and refused to recognize or bar-
gain with the Union.

4 On July 27, 2017, the Board granted the Respondent’s request for
review with respect to the supervisory status of dispatcher Frank Cap-
petta, but denied the request for review in all other respects. On re-
view, the Board found that Cappetta was not a statutory supervisor.
365 NLRB No. 113 (2017).
5 In the certification, the Regional Director stated that “dispatchers
and certified safety inspectors are neither included in nor excluded from
the bargaining unit.” We reject the Respondent’s argument that it could
not have violated the Act because it is not clear whether dispatchers and
certified safety inspectors are part of the unit description. Any doubts
as to the unit description could have been resolved through discussions
with the Union, and, that failing, through a unit clarification petition.
See, e.g. New York Law Publishing Co., 336 NLRB No. 93, slip op. at 2
(2001) (not reported in Board volume).
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since August 24, 2017, to rec-
ognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, UPS Ground Freight, Inc., Kutztown, Penn-
sylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Brotherhood of Teamsters Local 773 as the
exclusive collective-bargaining representative of the em-
ployees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
INCLUDED: All regular full-time and part-time road
drivers employed by the Employer at its facility located
at 9755 Commerce Circle, Kutztown, Pennsylvania.
EXCLUDED: All other employees, guards, and super-
visors as defined in the Act.6
(b) Within 14 days after service by the Region, post at
its facility in Kutztown, Pennsylvania, copies of the at-
tached notice marked “Appendix.”7 Copies of the notice,
on forms provided by the Acting Regional Director for
Region 4, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 24, 2017.
(c) Within 21 days after service by the Region, file
with the Acting Regional Director for Region 4 a sworn
certification of a responsible official on a form provided
by the Region attesting to the steps that the Respondent
has taken to comply.
Dated, Washington, D.C. June 1, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member

6 Dispatchers and certified safety instructors are neither included in
nor excluded from the bargaining unit.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with International Brotherhood of Teamsters Local 773
(the Union) as the exclusive collective-bargaining repre-
sentative of our employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing appropriate bargaining unit:
INCLUDED: All regular full-time and part-time road
drivers employed by us at our facility located at 9755
Commerce Circle, Kutztown, Pennsylvania.
EXCLUDED: All other employees, guards, and super-
visors as defined in the Act.*
* Dispatchers and certified safety instructors are
neither included in nor excluded from the bar-
gaining unit.
UPS GROUND FREIGHT, INC.
The Board’s decision can be found at
www.nlrb.gov/case/04-CA-205359 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
UPS GROUND FREIGHT, INC. 5